KONGTCHEU v. SECAUCUS HEALTH CARE LLC

Filing 34

OPINION. Signed by Judge Claire C. Cecchi on 5/30/14. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PHILBERT F. KONGTCHEU.

Civil Action No.: 2:13-cv-1856

Plaintiff,
OPINION

SECAUCUS HEALTHCARE CENTER, LLC,
Defendant.

CECCHI, District Judge.

There are three motions before the Court, Defendant’s motion to dismiss (ECF No. 21) and
Plaintiffs two cross-motions to strike (ECF Nos. 25 and 26). The Court decides the motions
without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure.’ For the reasons
set forth below the Court will administratively terminate Defendant’s motion to dismiss without
prejudice and deny Plaintiffs motions to strike.
I.

BACKGROUND

Plaintiff was a resident at Defendant’s long-term healthcare facility, and this dispute arises
out of numerous Complaints by Plaintiff regarding his care at that facility. In his original
Complaint, Plaintiff alleges that his room was unsuitable, that residents and nurse’s aides were
stealing his property, that his roommate’s medical issues disturbed him. and that his room would

The Court considers any new arguments not presented by the parties to be waived, çç
Brenner v. Local 514. United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991)
(“It is well established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).

flood. (ECF No. I

that
¶ 5). Plaintiff further avers that the food at the facility was “terrible” and

onably
his attempts to cook his own food or to purchase food to be prepared for him were unreas
thwarted. (Id.

caused him
¶J 6-7). Plaintiff states that the shower room’s unsanitary conditions

or
damage, that he was given incorrect medications, and that his personal property was damaged
stolen. (Id.

guard
¶J 8-10). Plaintiff also complains that Defendant and its agents did not carefully

his personal information, and did not fulfill his needs for special medical equipment. (Id.

¶J 11-

staff, that
12). Plaintiff claims that he was subject to harassment and assault by Defendant’s
that
Defendant redirected his supplemental security income payments without his permission and
Defendant tampered with his mail. (jd.

¶J 13-14).

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Plaintiff submitted serial Amended Complaints setting forth further allegations. In the first
living at
of these Amended Complaints, Plaintiff alleges that he was not allowed to iron while
Defendant’s facility. (ECF No. 4

¶ 6). Plaintiff alleges that he was served improperly labeled

iately
supplements, and that his discussions with Defendants regarding the labeling immed
to
preceded the initiation of involuntary discharge proceedings against him, and that this seemed
be an act of reprisal. (ECF No. 4 ¶j 7-8). Plaintiff sought relief barring Defendant from evicting
room
him. In the second of these Amended Complaints, Plaintiff alleges that Defendant entered his
without permission and removed his personal items and tampered with his mail, (ECF No. 5

¶J 2-

The Court notes that Plaintiff filed these Complaints without leave of court, and that the
in a
Amended Complaints are difficult to understand since they do not set out his allegations
notes that these filings
complete document with separately numbered paragraphs. The Court
violate the federal rules. Fed. R. Civ. P. 1 5(a)(l)(”[aj party may amend its pleading once as a
matter of course”) (emphasis added). However, given the liberal standards for pro se filings, the
Court will address the merits of all of Plaintiff’s allegations. However, Plaintiff is warned that
in
filing additional complaints without leave of court or written consent of Defendant may result
sanctions.
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his allegations regarding the
3). In the third of these Amended Complaints, Plaintiff re-submitted
that he reported the matter to
Defendant’s entry to his room. (ECF No. 7 ¶l 2-6). Plaintiff alleges
but did not investigate further.
the Secaucus Police, who he alleges spoke with the management
to forcibly enter his room to insert
(4 ¶ 9). Plaintiff further alleges that Defendants attempted
12-20). Plaintiff
another bed into it, and that the police were called by the facilities to assist. (4 ¶J
arrest, but that the police did
alleges that once the police arrived, the police threatened him with
not arrest him after he threatened to record the incident. (Id. at

¶ 21-22). Plaintiff claims that the

ions. (Id. at ¶J 26-28, 36incident increased his stress levels, which aggravates his medical condit

a defendant on state law
37). Plaintiff sought to add the Seacaucus Town Police department as
claims. (RI. at

that the defendant treated
¶ 39). In the final Amended Complaint, Plaintiff alleges

regarding the obstruction of
him differently because he receives Medicaid, and adds allegations
his mail. (ECF No. 23

¶J 5-6).

Defendant moved to dismiss. This Court has jurisdiction under 28 U.S.C.
II.

§ 1331.

LEGAL STANDARD
A.

Motion To Dismiss

contain sufficient
For a complaint to survive dismissal pursuant to Rule 12(b)(6). it “must
le on its face.” Ashcroft v.
factual matter, accepted as true, to state a claim to relief that is plausib
U.S. 544, 570 (2007)).
556 U.S. 662, 678 (2009) (quoting Bell AtI. Corp. v. Twomblv, 550
all well-pleaded factual
In evaluating the sufficiency of a complaint, the Court must accept
in favor of the non-moving
allegations in the complaint as true and draw all reasonable inferences
2008). However, the “[fjactual
party, See Phifli sv. Cntv. of 11e’henv. 515 F.3d 224, 234 (3d Cir.

ative level.” Twombly, 550
allegations must be enough to raise a right to relief above the specul
and conclusions or a formulaic
U.S. at 555. In other words, “[a] pleading that offers labels
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recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal citations
and quotations omitted).
B.

Standard For Reviewing Pro Se Filings

Because Plaintiff is apro se litigant, his filings are entitled to a liberal construction. Diuhos
v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). This Court therefore has a special obligation to
discern both the nature of the relief and the appropriate law to govern his request.
III.

PLAINTIFF’S FEDERAL CLAIMS
Liberally construing Plaintiff’s complaints, it appears as though he has asserted as many as

ten separate claims that might arise under federal law. These are: (1) violation of HIPAA privacy
rights, 45 C.F.R. 160-164 (ECF No. 1

¶ 20); (2) a violation of the resident’s rights regulations that

an institution must meet in order to qualify for certain participation in the Medicare and Medicaid
programs, 42 C.F.R.
fraud, 18 U.S.C.

§ 483.10 (ECF No. 1 ¶ 18); (3) violation of criminal statutes against wire

§ 1343 and 1346 (ECF No. I ¶ 24); (4) violations of the criminal statute against

obstruction of correspondence, 18 U.S.C.

§ 1702 (ECF No. 1 ¶ 40); (5) violation of the Food Drug

and Cosmetic Act as amended by the Nutrition Labeling and Education Act, 21 U.S.C.
(6) violation of the Americans with Disabilities Act, Title III (“ADA”), 42 U.S.C.

§ 301 (Id.);

§ 12181-12189

(Id.); (7) violations of the False Claims Act (“FCA”) under 31 U.S.C. § 3729-3733 (ECF No. I ¶
27); (8) violation of the requirements for nursing facilities under 42 U.S.C.
4); (9) violation of his First Amendment rights by Defendant (ECF No. 5

of his Fifth Amendment rights by Defendant (ECF No. 23

§ l396r (ECF No. 4 ¶

¶ 4); and (10) a violation

¶ 3).

Although Defendant styles its motion as one to dismiss the entire Complaint, Defendant

does not address each one of these claims. This leaves the Court with an undeveloped record upon
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address (I) Plaintiffs ADA
which to make a determination. In particular. Defendant does not
violation of the requirements
claims, (2) Plaintiff’s Federal FCA claims, (3) Plaintiffs claims of
for nursing facilities under 42 U.S.C.

§ 1 396r or (4) Plaintiffs constitutional allegations.

gh review difficult. First,
There are also two other procedural issues which make a thorou
motion to dismiss. Second,
Plaintiffs Fourth Amended Complaint was filed after Defendant’s
inary injunction that sets
since this motion was filed, Plaintiff has submitted a motion for a prelim
ofthe
out additional facts relevant to the Parties’ dispute. Accordingly, in light

incomplete briefing,

aint, and the subsequent
the posture of this motion relative to the Fourth Amended Compl
and give Plaintiff an
application for injunctive relief, the Court will terminate this motion
full opportunity to argue their
opportunity amend his Complaint so that the parties can have a
Holdings, 2008 WL
respective positions. See Daewoo Elec. Am. Inc., v. T.C.L. Indus. (H.K.)
y Grp. Co., 212 F.3d 180, 197
5136937, at *3 (D.N.J. Dec. 5, 2008) (citing U.S. S.E.C. v. Infinit
the sound discretion of the
(3d Cir. 2000) (“Matters of docket control and scheduling are within
district court.”).
IV.

DEFENDANT’S REQUEST TO ARBITRATE

for the first time that
On reply in support of its motion to dismiss, Defendant argues
and Defendant. (Def. Rep.
Plaintiff must arbitrate this dispute due to a contract between Plaintiff
and surmises that he was not
at 4). Plaintiff responds that he does not recall siguing the document,
to address an issue raised by
shown the entire agreement. (ECF No. 26 at 4). The Court declines
its early stages. this is without
Defendant improperly on reply. However, because this case is still in
te in this case. Ehleiter v.
prejudice to any future filing of a properly noticed motion to arbitra
tion “will normally be
Grapetree Shores, Inc., 482 F.3d 207, 223 (3d Cir. 2007) (waiver of arbitra
commenced and when both
found only where the demand for arbitration came long after the suit

omitted).
parties had engaged in extensive discovery”) (internal quotations
V.

PLAINTIFF’S MOTIONS TO STRIKE

and portions of Defendant’s
Plaintiff seeks to strike portions of Defendant’s Affidavit
exhibits, and “all speculations on the
briefing. (ECF No. 25 at ¶J 1-4 (seeking to strike affidavits,
purpose of this motion.”)). Under
plaintiffs motives for filing the complaint as immaterial for the
cient defense or any redundant,
Rule 12(f) a party may move to “strike from a pleading an insuffi
erable discretion in deciding a
immaterial, impertinent, or scandalous matter.” A court has consid
2340096, at *2 (D.N.J. June 18, 2012)
motion to strike. Jones v. U.S., No. 10-cv-3502, 2012 WL
will be denied “unless the allegations
(quotations omitted). Motions to strike are disfavored and
ice to one of the parties, or if the
have no possible relation to the controversy and may cause prejud
ugh Corp./Enhance Sec. Litig., No.
allegations confuse the issues in the case.” In re Schering-Plo
Although Rule 12(f) applies to
08-cv-397, 2009 WL 1410961, at *1 (D.N.J. May 19, 2009).
ents by
pleadings, it has been applied using this standard to other docum

other courts in this district.

held that a brief is not a “pleading”
See Jones, 2012 WL 2340096, at *2. However, it has also been
v. U.S., No 12-cv-1339, 2013 WL
which is properly the subject of a motion to strike. Rivera
v, Nat’l R.R. Passenger Cow., 829
826396, at *1 (M.D.Pa. April 30, 2013), see also Hrubec
gs allowed).
F,Supp. 1502, 1506 (N.D.Ill. 1993); Rule 7(a) (listing pleadin
the assertions in Defendant’s
In any event, the Court finds that plaintiff has not shown that
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the issues in this case. Accordingly,
submissions are irrelevant, cause prejudice. or confuse

types of material,” it may
The Court is mindful that, other than “certain narrowly defined
to dismiss without converting the
not consider matters outside the pleadings in deciding a motion
Center Properties, Inc. Securities
motion into one for summary judgment. In re Rockefeller
Litigation, 184 F.3d 280. 287 (3d Cir. 1999).
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Plaintiff’s motion to strike is denied.
VI.

CONCLUSION

Defendant’s motion to dismiss will be terminated without prejudice. Plaintiff’s motions to
strike will be denied. An appropriate order accompanies this opinion.
DATED:

‘\&

3°,

CLAIRE C. CECCHI, U.S.D.J.

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